Wednesday, June 25, 2014Last Update: 2:22 PM PT

Ford Enforces Decade-Old Protective Orders

(CN) - Decade-old protective orders block litigants from using confidential documents while fighting Ford competitors, the 5th Circuit ruled. The case involves two identically worded protective orders entered 10 years ago in Bonilla v. Ford Motor Co. and Moore v. Ford Motor Co. Volvo Corp. was a Ford subsidiary at the time, and Ford produced numerous Volvo documents it deemed confidential under those orders. Attorneys for the plaintiffs challenged the documents' confidentiality in a 2004 email to Ford, noting that Volvo had presented the info Ford wanted to keep under wraps to the National Highway Traffic Safety Administration, a European university, the media and civic groups. Ford agreed to release 12 documents but asked for more time to consider whether the documents "as a whole should no longer be classified as confidential." Impatient with Ford's foot dragging, the plaintiffs' attorney replied: "I gave Ford adequate time. I am sending the materials out. Thanks for trying." After more correspondence between Ford and the plaintiffs' counsel in 2005, Ford agreed to remove the classified status of other Volvo documents. But Ford changed its tune in 2012 when it got an affidavit from a plaintiff's expert in an Idaho state court case that included citations to Volvo documents from Moore and Bonilla. The affidavit said the plaintiffs' attorney understood that Ford had waived the confidential designation on the documents. Ford disagreed and promptly moved to enforce the Moore and Bonilla protective orders with a federal magistrate in the Eastern District of Texas, where those two cases were filed. In siding with Ford, the magistrate said plaintiffs' counsel had not officially put Ford on notice of a challenge to the confidential orders in their email exchanges. "There is no waiver in this case of the protection of the two protective orders," the magistrate concluded.) The plaintiffs argued on appeal that the protective orders gave Ford 15 days to move to keep documents confidential after receiving a challenge. Because Ford took longer than that to respond, they said the confidential designation was waived. Siding 2-1 with Ford on Friday, the 5th Circuit pointed out that the protective order language is ambiguous, and that the 15-day response period may be read to start only after the parties reach an impasse in their negotiations. Even after the plaintiffs' attorney said he was releasing the confidential documents to other parties, he continued negotiations with Ford into the next year, Judge Patrick Higginbotham wrote for the majority. The argument by plaintiffs' attorney for a strict reading of the 15-day response period is thus at odds with his actions in continuing talks with Ford about the status of the documents, according to the ruling. Ford's guile is evident, but the plaintiffs were not blameless either, the New Orleans-based court found. "The record in this case demonstrates gamesmanship by both parties: plaintiffs sought to void confidential designations by vague, generalized objections to all the documents, and Ford likely over-designated documents as confidential," Higginbotham wrote. Judge Jennifer Walker Elrod took the majority to task for straying from a strict reading of the protective orders. "The panel opinion suggests that the 15-day period for seeking a protective order only begins to run once the parties are unable to resolve the dispute on their own, and seems to allow a limitless period for these party negotiations to occur," Elrod's four-page dissent states. "But this reading strains the plain language of the protective orders, which only require the confidentiality of the documents to be 'in dispute' in order to trigger the 15-day period."